There’s a long history to this case, with litigation itself spanning back 15 years, and the squabbles before that spanning back to the mid-80s. In short, a state court invalidated the Redevelopment Authority’s attempted exercise of its eminent domain power because the Authority had improperly delegated that authority to a private developer. The decision hinged on the fact that development agreements allowed the private developer to choose the specific time when the Authority would initiate condemnation proceedings against R&J. The state court awarded R&J Holding over $550,000 in attorneys fees and other litigation costs.

R&J then filed a Sec 1983 case claiming a taking, because Pennsylvania state law transferred title from the land owner to the Authority as soon as the Authority initiated condemnation proceedings against R&J. The federal court kicked the case out under Williamson County ripeness rules. For those who are not familiar with Williamson County, it essentially stands for the premise that a federal court will not hear a takings claim until a plaintiff first goes through state inverse condemnation proceedings first. Williamson County v. Hamilton Bank, 473 U.S. 172 (1985).

R&J then filed its inverse condemnation in state court, while at the same time invoking an England reservation to preserve their federal claims in federal court. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964). Eventually, Pennsylvania state courts ruled that state law does not entitle a prevailing condemnee to compensatory damages, but only to out-of-pocket expenses, which the owner had already received (the 550k).

A dejected R&J then returned to federal court filing the case at issue here. R&J asserted, among other things, a Fifth Amendment takings claim. The Authority moved to dismiss, arguing that the takings claim was barred by the doctrine of claim and issue preclusion. The district court agreed.

In December 2011, the Third Circuit reversed. Under the Full Faith and Credit statue, 28 USC 1738, “judicial proceeding … shall have the same full faith and credit in every court within the United States … as they have by law or usage in the courts of” the state from which they emerged. The Supreme Court in San Remo Hotel v. City & Cnty. Of San Francisco, 545 U.S. 323 (2005), added that it “has long been understood to encompass the doctrines of [claim and issue preclusion.” What the Third Circuit has done in this case is rely on the language in San Remo to create a rule that claim/issue preclusion analysis must be conducted utilizing the issue/claim preclusion rules that state law dictates. Under Pennsylvania common law, issue/claim preclusion analysis includes the factor that for preclusion to apply, the defendant (in this case, the Authority) must object to any attempt by the Plaintiff to reserve their federal claims. In this case the Third Circuit ruled that because the Authority did not object to R&J’s England reservation, issue/claim preclusion did not apply.

This decision still flies in the face of established Supreme Court precedent. In San Remo, it is seemingly clear that its language is not intended to force federal courts to use state law issue/claim preclusion doctrines to resolve takings claims. In addition, San Remo also makes it clear that an England reservation is intended in situations where the state law claim is distinct from the federal law claim, unlike here.

The Williamson doctrine, issue/claim preclusion, and the England reservation, are some of the more controversial issues in land use (for plaintiffs). However, at the end of the day, there needs to be finality to litigation. This case has already taken 15 years and cost the Authority countless dollars. Allowing two bites at the apple will only cost the Authority more time and money. The Supreme Court itself states in cases like these “we apply our normal assumption that the weighty interests in finality and comity trump the interest in giving losing litigants access to an additional appellate tribunal.” San Remo.

]]>https://imlablog.wordpress.com/2012/05/17/imla-files-cert-petition-level-amicus-brief-along-with-other-organizations-in-redevelopment-authority-of-montgomery-v-r-j-holding/feed/0imlablogNew Federal Law Changes Local Zoning Rules for Wireless Antenna Sitingshttps://imlablog.wordpress.com/2012/02/23/new-federal-law-changes-local-zoning-rules-for-wireless-antenna-sitings/
https://imlablog.wordpress.com/2012/02/23/new-federal-law-changes-local-zoning-rules-for-wireless-antenna-sitings/#respondThu, 23 Feb 2012 20:34:52 +0000http://imlablog.wordpress.com/2012/02/23/new-federal-law-changes-local-zoning-rules-for-wireless-antenna-sitings/]]>This is a repost from a legal alert by Best Best & Kreiger telecom attorneys

Local Governments Should Take Immediate Action

President Obama signed into law a bill passed by Congress last week that extended unemployment benefits and the payroll tax deduction. The bill, HR 3630, includes other provisions relevant to local government, such as restrictions on siting of wireless facilities and changes to the public safety radio spectrum. The new law, signed by the President on Wednesday, is effective immediately. Local governments should take immediate action to review and possibly amend local ordinances to protect their interests and avoid lawsuits.

Under Section 332(c)(7) of the Telecommunications Act, local governments have broad authority to control the siting of cellular and other wireless towers, antennas, and related facilities. Many cities and counties have ordinances that govern both the initial placement and modification of wireless facilities. The new law may require changes to those rules. It mandates local approval of certain applications for modification of “an existing wireless tower or base station.”

The law states that “Notwithstanding [Section 332(c)(7)] or any other provision of law, a state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”

Local governments should anticipate that representatives of tower companies will claim that cities and counties must approve many pending collocation applications unless the expansion adds significantly to the height or width of a facility. Entities that have placed wireless facilities on public light poles and other public property may argue they can now expand their facilities without review by the local government. We expect providers to move quickly to challenge local ordinances that consider any collocation factor other than “physical dimensions.” More aggressive applicants may claim the failure to “approve” subjects jurisdictions to damages and attorneys fees for failure to act.

Don’t be intimidated, but do look seriously at your ordinance. The law does not prevent a locality from reviewing a proposed installation. There are significant ambiguities in the new law that undercut claims you “must act” on every collocation application.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

The City’s roadside solicitation law was enacted back in the 1980s because of all the traffic/safety problems associated with day laborers soliciting employment from moving cars. The law was not limited to day laborers, and barred any individual from standing on a street or highway and soliciting, or attempting to solicit employment, business, or contributions from an occupant of any motor vehicle. The definition of street included sidewalks, parkways, medians, alleys and curbs. The Ninth Circuit ruled that the City’s solicitation ordinance was unconstitutional in that although it was content neutral, it was not narrowly tailored. The Ninth Circuit decision features one of the harshest dissents we’ve read. It’s worth reading.

A group of property owners brought an equal protection claim against the City of Indianapolis due to the City’s decision to provide tax relief only on a prospective basis. Prior to 2005, the City would finance sewer projects by apportioning the costs to property owners. The City allowed owners to pay in full or by installments (10, 20, 30 year options). At some point, the City decided to move away from this method of financing and moved to a completely different system and made the decision to forgive the remaining amounts owed under the old system. However, the affected owners had not all paid the same amount since some homeowners had paid in full while some had opted for the longest term financing possible.

IMLA has submitted a brief in this case to emphasize that the City’s actions meet the rational basis standard. City’s have reasonable, legitimate and even compelling reasons for differentiating between tax refunds and prospective tax relief. We invite you to read this excellent brief.

]]>https://imlablog.wordpress.com/2012/02/13/imla-files-amicus-brief-with-scotus-in-armour-v-city-of-indianapolis/feed/0imlablogReport on IMLA Members’ Participation in World Jurist Association’s 24th Biennial Congress in Prague, Czech Republichttps://imlablog.wordpress.com/2011/12/07/report-on-imla-members-participation-in-world-jurist-associations-24th-biennial-congress-in-prague-czech-republic/
https://imlablog.wordpress.com/2011/12/07/report-on-imla-members-participation-in-world-jurist-associations-24th-biennial-congress-in-prague-czech-republic/#respondWed, 07 Dec 2011 19:12:18 +0000http://imlablog.wordpress.com/2011/12/07/report-on-imla-members-participation-in-world-jurist-associations-24th-biennial-congress-in-prague-czech-republic/]]>Thirteen members of IMLA recently participated in panel presentations at the World Jurist Association’s 24th Biennial Congress on the Law of the World. The WJA Congress was held October 23 – 28, 2011, in the Congress Centre of Prague, Czech Republic, and centered on the international theme “National Legal Cultures in a Globalized World.”

The first panel, “Protecting the Public – Local Law,” featured Robert Alfton who spoke on Labor Law in the Public Sector, Aashish Srivastava who addressed Cyberbullying Laws in Australia, and concluded with a joint presentation by Iris Jones and Patricia Lynch, who discussed the Need for a Global Response to Cyberbullying.

The second panel, “Governance in the Public Sector,” featured Phillip Sparkes who addressed The Ethical Obligation of Government Legal Advisors, a joint presentation by Charles W. Thompson, Jr. and Robert N. Hills on Graffiti Vandalism in America – Shaping the Municipal Response, and concluded with a presentation by Susan Moore on Innovation in ADR to Resolve Political Impasses.

The third panel, “Stewardship, Sustainable Use and Development of Land and Resources,” featured Edward Sullivan who discussed Land Use and Forestry Protection, Timothy D. Hollister who addressed Black and White Issues in the Evolution of Green Building Standards, and Benjamin E. Griffith who gave a presentation Fracking for Shale Gas – Energy Security and Sustainable Water
Resources.

The fourth panel adhered to the same overall theme of the third and featured Julian Grant who discussed Ownership and Care of the Beaches and Coastal Regions of the U.S. and the World, Steven R. Meyers who addressed Public Private Partnerships in the Global Economy, and Dwight H. Merriam who gave a presentation on Private Residential Communities – A Cross Cultural Comparison.

THE WJA World Congress was attended by over 350 members and guests representing over 50 nations. Support and staffing was provided by WJA staff, the Czech Bar Association, ICC Paris and National Committees of the region, as well as local law faculties in Prague and Plzen and IMLA.

The diversity of the many panels was matched only by the breadth of the legal topics and issues addressed during the five day Congress.The participation of IMLA members as speakers and presenters at the WJA 24th Biennial Congress signifies the continuation of a rich and meaningful collaboration between IMLA and WJA dating back to over 2 decades.

The Supreme Court recently granted cert in Magner v. Gallagher, a case that will likely have implications for local governments. IMLA submitted an important amicus brief in this case, you can read our brief here and see a mention of our brief in a recent Forbes.com article.

Like many cities, St. Paul has a property maintenance code which establishes minimum maintenance standards for all structures, including provisions on light, ventilation, heating, sanitation, fire safety, etc. In 2002, the City established the Department of Neighborhood Housing and Property Improvement (DNHPI) as an executive department responsible for administering and enforcing the code.

The director of DNHPI increased the level of code enforcement target at rental properties, and directed proactive “sweeps” to detect code violations. DNHPI sought to compel property owners to take greater responsibility for their properties or, alternatively, force changes in ownership. To achieve its objectives, DNHPI employed a variety of strategies for renter-occupied dwellings, including orders to correct or abate conditions, condemnations, vacant-building registration, fees for excessive consumption of municipal services, tenant evictions, real-estate seizures, revocations of rental registrations, tenant-remedies actions, and if necessary, court action.

Plaintiffs in this case are essentially landlords, with portfolios ranging from one property to over forty properties. These landlords received code enforcement citations that in many cases, cited between ten and twenty-five violations per property. As a result, Plaintiffs claim they suffered increased maintenance costs, fees, condemnations, and were forced to sell properties in some instances.

Plaintiffs brought a number of claims (11 in total), and the district court dismissed all on summary judgment. The plaintiffs appealed to the Eighth Circuit Court of appeals, where the Court affirmed in all aspects except one. On review, the 8th Circuit held that disparate impact theory applied to a claim of racial discrimination under the FHA when a city applies its housing maintenance code to substandard housing, because the cost to repair tended to reduce housing options for people of color. The standard used by the 8th Circuit is that a plaintiff “must show a facially neutral policy ha[d] a significant adverse impact on members of a protected minority group.” Plaintiffs are NOT required to show that the policy or practice was formulated with discriminatory intent. The Circuits are split on this. The Seventh Circuit (and a few others have follow) includes the following factors to be used: (1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [426 U.S. 229 (1976)]; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.

]]>https://imlablog.wordpress.com/2011/11/10/disparate-impact-claims-under-fair-housing-act-supreme-court-grants-cert/feed/0imlablogAcronym of the Day – RLUIPAhttps://imlablog.wordpress.com/2011/09/19/acronym-of-the-day-rluipa/
https://imlablog.wordpress.com/2011/09/19/acronym-of-the-day-rluipa/#commentsMon, 19 Sep 2011 17:42:28 +0000http://imlablog.wordpress.com/?p=1021]]>As local government lawyers, most of us are familiar with RLUIPA and what keeps us up at night is the question: What do institutionalized persons have to do with religious land use? [RLUIPA – Religious Land Use and Institutionalized Persons Act].

It’s an interesting case, and if SCOTUS grants cert, it might be the case that clears up some of the ambiguity of RLUIPA. The Questions Presented in the cert petition are:

1. Whether cost and/or inconvenience can be sufficient for a religious landowner to prove that an adverse land use or zoning decision imposes a “substantial burden” under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006).

2. Whether case-by-case analysis of a land use application constitutes an “individualized assessment” under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(2)(C) (2006).

3. Whether neutral, generally applicable planning principles may be a “compelling interest” of local governments under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
§2000cc(a)(1)(A) (2006).

]]>https://imlablog.wordpress.com/2011/09/19/acronym-of-the-day-rluipa/feed/1imlabloghttps://imlablog.wordpress.com/2011/04/18/1018/
https://imlablog.wordpress.com/2011/04/18/1018/#respondMon, 18 Apr 2011 16:22:21 +0000http://imlablog.wordpress.com/?p=1018]]>IMLA welcomes our new intern for the month of April, from the country of Georgia.

I am Teona Tavelishvili. I am visiting here through the Legislative Fellows Program organized by American Councils for International Education in hopes of learning about how local governments operate in the United States. The program facilitates month long internships with local and state governments throughout the United States and is designed to help young professionals from other countries gain a better understanding of the legislative and political processes.

I am lawyer of the local administrative body of Sagarejo municipality. This is a town in Kakheti, in eastern Georgia with 12,000 population. During my interning period I attended the Mid-Year Seminar which took place in Washington DC. I met representatives of counties, city attorneys and other members of IMLA from different states of America. I listened to their interesting speeches and representatives shared each other their municipality’s issues. They were talking about their counties problems and offered their solving ways. Some of them are similar to my municipality’s others are not. But what I found interested here is that this organization makes many good things for municipalities and such meetings and seminars is very important, to improve working systems in local bodies.

My great desire is when I go back to my country tell my region about IMLA and make presentation about the functions and goals of IMLA and offer Georgians to create the similar organization in our country.

Here’s the description provided on the NPR website of the audio feed: As the foreclosure crisis continues, derelict properties have become a growing problem in neighborhoods nationwide. Webster, Mass., has come up with an innovative way to deal with buildings deemed nuisances: posting the names and contact information of the owner in front of the property.

How is your community dealing with abandoned properties? Have any other communities tried posting a “wall of shame” on a owner’s abandoned property?

In the past three years, cable operators have flooded the FCC with petitions claiming that because satellite providers serve the same communities, the cable operators face “effective competition” and should be deregulated. What has caused this dramatic uptick in filings at the turn of the decade? As you might suspect, the answer appears to relate less to a sudden emergence of meaningful competition (which, for most, remains hard to come by) than to old-fashioned gamesmanship.

In many recent petitions, cable operators, seeking to beat the release of 2010 U.S. Census data, have distorted the competitive status of many local markets by comparing current satellite subscribership with 10 year old (2000 U.S. Census) occupied housing data. For communities that have grown over the past decade, this creates a highly misleading picture of competition: it overstates satellite subscribership, often dramatically. Yet, lacking better data, the FCC—which finds effective competition if a cable operator shows that 15% of community households subscribe to satellite—has accepted these mismatched showings and freed cable operators from local regulation.

This need not be the case. Local government attorneys can now quickly and easily clarify this distortion using a simple tool: 2010 U.S. Census data. We have found that using 2010—not 2000—U.S. Census housing data often materially changes the 15% analysis. If your community has experienced any growth over the past decade, you should review whether a cable operator has recently filed an effective competition petition. If so, a simple filing with the FCC could correct the operator’s “effective competition” status and preserve valuable community benefits.

Why an Effective Competition Finding Matters

An “effective competition” finding helps the cable company and hurts the local community. After the FCC finds “effective competition,” a local government may no longer regulate the cable company’s basic cable service rates. In addition, cable operators use “effective competition” status to justify other anti-consumer practices. For example, certain operators have claimed that they no longer must place PEG channels on the basic service tier, and can require additional equipment to view it. The “competitive market,” it is said, will protect these benefits. But in areas where this so-called “effective competition” is the product of a cable operator’s skewed market calculations, cable subscribers in the community are left with no protection at all.

Why Recent Petitions May Not Fairly Reflect the Competitive Market in Your Community

In recent years, cable operators have flooded the FCC with effective competition petitions. In 2009, the total number of local markets found subject to effective competition more than doubled, increasing from 3,205 to 7,034. The FCC explained that the increase was due largely to petitions relying on the 15% satellite market share test. The FCC also found that cable rates are higher in markets that supposedly face “effective competition.” The FCC openly attributes this effect to these recently-filed petitions.[1]

The fact that monthly cable bills have risen in new “effective competition” communities should not be a surprise for a simple reason: many recently-filed petitions do not document real competition at all. Because the FCC compares a community’s satellite subscribership with its total occupied households (to find effective competition, the FCC requires over 15% of households to subscribe), and because the U.S. Census only updates household counts every 10 years, many cable operators have claimed “effective competition” by comparing current satellite subscribership with ten year old household data. In many communities, this has produced “effective competition” findings that recent household data reveal to be simply wrong.

What Your Community Can Do

Local government attorneys now have an easy way to counter this tactic. For many states, the U.S. Census Bureau has already released occupied household numbers by community. For many others, such data will be released shortly.[2]

If your community has been the subject of a recent effective competition petition (even one already granted), you should test the cable company’s reported subscribership count against the occupied household count reported in the 2010 U.S. Census. If the total number of competing subscribers the company reports is less than 15%, your community should correct the record and preserve local benefits. The cable operator should not achieve “unregulated” status based on an openly misleading depiction of your local cable market.

Should you have any questions, please do not hesitate to contact us (Miller & Van Eaton, PLLC).